Spandex_Is_A_Privilege by shimeiyan

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									  SPANDEX IS A PRIVILEGE,
        NOT A RIGHT!
(Casual Days, Dress Codes and
      Work Appearance)
          Bob Gregg
      Boardman Law Firm
      Madison, Wisconsin
 WE USED TO
BE SO FORMAL
BUT THINGS ARE CHANGING
DON’T BE UPTIGHT,
   LOOSEN UP
                                     AGENDA

I INTRODUCTION
   When Casual Day has Gone Too Far
   Spandex is a privilege, but what if someone claims a “right” to look different?

II. WHAT ARE THE EMPLOYERS RIGHTS TO REGULATE APPEARANCE?
    A. The Employer’s Legal Foundation
    B. Dress Codes; Health; Safety; Appropriateness

III THE EMPLOYEES’ LEGAL RIGHTS
  A.   Constitution
  B.   Discrimination (Sex, Disability, Race and National Origin)
  C.   Religious Adornment and Clothing Requirements
  D.   Privacy Rights
  E.   Labor Law and Union Contracts

IV. “How To” Properly Address Issues like Body Odor, Clothing, Hairstyle,
       Piercings
                              LAWS

US Constitution

OSHA

Discrimination:
Age          Race       National Origin
Disability   Religion   Sex/Gender

National Labor Relation Act

Privacy

State and Local Laws
      Discussion Example #1


A number of employees have complained to
the supervisor about the body odor of a
fellow worker.
       Discussion Example #2


Paul is the repair specialist who goes to your
customers’ businesses. His uniform is always
clean and neat, but today he came to work with
three rings through his right nostril and an
earring dangling from his left ear, and he said
that his eyebrow piercing is set for next week.
The Service Manager doesn’t want to send him
out looking like that! Paul says that the women
in the company wear earrings and no one
hassles them.
    Discussion Example #3


The Clerical Manager has informed
you that the person who seems to be
the most qualified candidate for the
receptionist position is Moslem and
has stated that she must wear her
head covering at all times. The
manager says it looks sort of “weird.”
      Discussion Example #4



Janice showed up at work wearing a
beaded and braided hairstyle. When
the manager told her it was not a
professional appearance, Janice
stated, “This is an ethnic style and part
of my African American identity. You
can’t impose your ethnocentric White
values on me!”
    Discussion Example #5


The election is coming up. Sandra wore
a campaign button for a State Senate
candidate. The next day, Frank wore a
button for the rival candidate. Then
Sandra put a campaign sign on her
desk. Today, Frank is wearing a shirt
promoting his candidate. When asked
to tone it down, both insist that the law
prevents employers from interfering with
their rights as voters.
          Discussion Example #6

The school issued a policy banning confederate
flag clothing or patches. Three students wore
confederate flag t-shirts in protest and have
been suspended. They have filed an appeal,
among other things, claiming that the school did
not discipline a group who wore black armbands
in protest of the “disenfranchisement of African
American voters” in the last election.
  U.S. Constitution

  Covers Public Sector and
some Government Contractors
The Constitutional Standard for
Restrictions on Appearance is:

  COMPELLING INTEREST
        Compelling Interest

• Identify the Issue
• Strong evidence that there is a need to
  restrict
• Is not overly restrictive
Non-Governmental Employees

  • “Reasonable Rules”
  • “Rational Basis”
  • Does not violate laws
        Example #1

• A number of employees have
  complained to the supervisor
  about the body odor of a
  fellow worker
             From the Knoxville (Tenn.) News-Sentinel


            BEST SMELLING TOWN
     City officials in Murfreesboro, Tennessee – about 30 miles
  south of Nashville – say one smelly employee is responsible
  for a new policy that requires all city employees to smell nice
  at work.
     “No employee shall have an odor generally offensive to
  others when reporting to work. An offensive body odor may
  result from a lack of good hygiene, from an excessive
  application of a fragrant aftershave or cologne or from other
  cause.”
     The definition of body odor was left intentionally vague.
     “We’ll know it when we smell it, “ said City Councilman
  Toby Gilley.

Great towns have the scents to sniff out problems before they get
                           out of hand.
The Employer’s duty to address
    appearance or odors:

    • Safety/Health
    • Complaints of Offensiveness
Problem of not addressing
       the issue:
 • OSHA violations
 • Harassment violations
   – By those offended
   – By the person at issue
 • Disability suits
How Do You Approach the Issue?
SCRIPT
   Script #1

• Describe Facts and
• Job Relatedness
• Ask
           Avoid:

•   Labels
•   Naming Names
•   Diagnosis
•   Lecturing (Ask, Don’t Tell)
An Employer has the general right
 to set workplace standards of:

         • Appearance
         • Hygiene
         • Scents
               Disability
Ongoing mental or medical condition,
which seriously impairs a major life activity
and makes work achievement unusually
difficult or limits the capacity for work.
          Disability Process
Step 1.   Awareness of disability

Step 2.   Interactive process
             -- Document

Step 3.   Reasonable accommodation
            Example #2
Paul is the repair specialist who goes to
your customers’ businesses. His uniform
is always clean and neat, but today he
came to work with three rings through his
right nostril and an earring dangling from
his left ear, and he said that his eyebrow
piercing is set for next week. The Service
Manager doesn’t want to send him out
looking like that! Paul says that the
women in the company wear earrings and
no one hassles them.
Safety Issue?
Sex/Gender Discrimination
    Sexual Harassment

• Revealing Garb
• Offensive Comments on Appearance
        Gender Standards

             Equal Impact
                - But -
Can Consider Customary Styles of Clothing
 Gender Changes

• Not Federally Covered
• State Laws Vary
     Tattoos & Piercings

• Gender-neutral (except for earrings)
• Can require coverage
• Check state/local law
       Hair

• Gender Neutral
• State Warning Laws
              Example #3

• The clerical manager has informed you that the
  person who seems to be the most qualified
  candidate for the receptionist position is
  Moslem and has stated that she must wear her
  head covering at all times. The manager says
  it looks sort of “weird”.
        Religion

• May not discriminate
• Must reasonably accommodate
               Example #4

• Janice showed up at work wearing a beaded
  and braided hairstyle. When the manager
  told her it was not a professional appearance,
  Janice stated, “This is an ethnic style and part
  of my African American identity. You can’t
  impose your ethnocentric values on me!”
• Race
• National Origin
• Ethnic Identity
          Race

• Physical Characteristics
• Hair
• Beards – Medical Conditions
       Ethnicity

•   Group Identity
•   Hair
•   Scarification
•   Clothing
    – Widely Adopted
    – Hip Hop Cases
               Example #5
• The election is coming up. Sandra wore a
  campaign button for a State Senate candidate.
  The next day, Frank wore a button for the rival
  candidate. Then Sandra put a campaign sign on
  her desk. Today Frank is wearing a shirt
  promoting his candidate. When asked to tone it
  down, both insist that the law prevents
  employers from interfering with their rights as
  voters.
Political/Social Expression in the
 Non-Governmental Workplace
   • Reasonable Rules
   • Rational Basis
     – “Offensive” expression
       • What is “political/social”?
       • What is “offensive”?
       • Employers right to determine
Other Symbolic Appearance

    • Advertising
    • Patriotic
    • Labor Relations
   Advertising

• No Employee rights
• Employer can require
        Off-Duty Wearing of
         Company Insignia

• Employer can control
• The wearer is a walking advertisement
    Patriotic Symbols

• Cannot require or coerce
• Private employer has absolute
  right to restrict
• Consider publicity issues of
  restrictions
       Labor Relations

• National Labor Relations Act
  – Right to express “concerted” concerns
  – Right to refuse to wear insignia
  – Duty to bargain dress codes
 Establishing Policy

No requirement to have a policy

(Call it as you see it – reasonably
         and within the law)
 Considerations for
Appearance Policies
                Legal
• Public organizations “compelling interest”
• Private employers “reasonable rule” or
  “rational basis”
• Discriminating effect
• National Labor Relations Act & Union
  Contracts
• Other federal, state & local aaws
Business/Job Related Basis
 •   Health
 •   Safety
 •   Work Conditions
 •   Functionality
 •   Geography (hot, cold, rural, urban,
     community standards)
Reasonableness
        Company Image
•   Healthy
•   Sanitary
•   Professional
•   Casual
•   “The Harley Image”
•   Uniform
•   Non-offensive to diverse clientele
•   Etc.
              Feasible
• Ease of acceptance versus a fight.
• Enforceability
• Expense to employee or organization
• A0467294.ppt
• Wisconsin SHRM 2006 Conference

								
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